HAMARA GAON HAMARA RAJ - pria.org fileHamara Gaon Hamara Raj C:\digital\PRIA Publication \PESA...

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June 2004 PRIA 42, Tughlakabad Institutional Area New Delhi 110 062 Ph: 011-29960931/32/33 Fax: 011- 29955183 E-mail: [email protected] website: www.pria.org HAMARA GAON HAMARA RAJ A GUIDE BOOK ON TRIBAL SELF-RULE LAW IN GUJARAT

Transcript of HAMARA GAON HAMARA RAJ - pria.org fileHamara Gaon Hamara Raj C:\digital\PRIA Publication \PESA...

Page 1: HAMARA GAON HAMARA RAJ - pria.org fileHamara Gaon Hamara Raj C:\digital\PRIA Publication \PESA \PESA-M-Gujarat-Eng.doc 3 Box 1.1 What is the Constitution? The Constitution of India

June 2004

PRIA 42, Tughlakabad Institutional Area

New Delhi 110 062 Ph: 011-29960931/32/33 Fax: 011- 29955183

E-mail: [email protected] website: www.pria.org

HAMARA GAON HAMARA RAJ A GUIDE BOOK ON TRIBAL SELF-RULE LAW IN

GUJARAT

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Table of contents

INTRODUCTION............................................................................................................... 3

I: WHAT IS PESA ............................................................................................................. 4

1.1 PESA – THE LAW ...................................................................................................4 1.2 APPLICABILITY OF PESA ......................................................................................4 1.3 SIGNIFICANCE OF PESA.................................................................................................4

PART II: PESA FOR US ................................................................................................... 7

2.1 APPLICABILITY OF PESA IN GUJARAT...............................................................7 2.2 WE, THE PEOPLE...................................................................................................7 2.3 OUR POWERS! BUT HOW DO WE EXERCISE THEM?........................................10

2.3.1 Powers exclusive to Gram Sabha ......................................................................... 11 2.3.2 Powers exclusive to Panchayats at appropriate level............................................. 13 2.3.3 Powers of Gram Sabha OR Panchayat at appropriate level................................... 13 2.3.4 Powers of Gram Sabha AND Panchayat at appropriate level: ............................... 14 2.3.5 Reservation of seats for people belonging to Scheduled Tribes:............................. 17

2.4 HOW TO MAKE PESA WORK FOR US: SOME SUGGESTIONS........................17 2.4.1 Making PESA work for us................................................................................... 17 2.4.2 Using the Right to Information............................................................................ 17

PART III: LEGAL INTERPRETATION AIDS ............................................................... 18

ANNEXURE NO. 1............................................................................................................ 22

THE PANCHAYAT (EXTENSION TO SCHEDULED AREAS) ACT, 1996 (ACT 40 OF 1996).................................................................................................................................. 22

ANNEXURE NO. 2............................................................................................................ 26

GUJARAT PANCHAYATS AMENDMENT ACT, 1998 (ACT NO. 5 OF 1998) ............... 26

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Box 1.1 What is the Constitution? The Constitution of India came into force on 26th

January 1950. This Constitution is the foundational law of our nation. All other laws and the executive acts of the State draw their validity and legitimacy from the constitution.

TRIBAL SELF-RULE LAW IN GUJARAT

Introduction

The 1990s witnessed a committed effort by the Government of India to decentralize

governance through empowerment at the village level. As a first step towards

representative and participatory democracy, a three tier Panchayati Raj System was

granted constitutional status through the 73rd Amendment Act, 19921, which came into

force on 24th April 1993. This Act directed the State legislatures to form laws that not

only enabled the establishment of

Panchayats, but also vested in them such

power and authority as was necessary to

make them institutions of self-government.

The provisions of the Act however, did not

extend to those tribal areas mentioned in the

fifth schedule of the Constitution (hereafter referred to as Scheduled Areas). The system

of Panchayats was extended to these Scheduled Areas through the enactment of the

Panchayat (Extension to Scheduled Areas) Act on 24th December 1996 (PESA).

1 73rd Amendment Act- This means that the Constitution of India has been amended (changed) 73 times. An amendment to the Constitution is done whenever the Government of India feels that an issue has to receive a nation wide acceptance. An Amendment of the Constitution may be initiated only by the introduction of bill for the purpose in either House by majority (i.e. more than 50%) of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting. It shall be presented to the President for his assent and upon such assent being given to the Bill, the Constitution shall stand amended. Therefore through the 73rd Amendment Part IX was inserted in the Constitution, which for the first time accepted that Local Self Government in the form of Panchayat Raj Institutions has been made the law of the land.

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Box 1.2 The Scheduled Areas

Scheduled areas are so called because they have been listed under the fifth schedule of Article 244 (1) of the Constitution. Historically these scheduled and tribal areas were excluded from the normal operation of ordinary law to preserve the social customs & to safeguard the traditional vocations of the tribals living in those areas. Nine states in the country today, have Scheduled Areas. These are Andhra Pradesh, Himachal Pradesh, Orrisa, Jharkhand, Gujrat, Rajasthan, Maharashtra, M.P. and Chattisgarh. Scheduled areas may be the entire district, or blocks within a district or Panchayats or villages within blocks.

I: What is PESA

1.1 PESA – the law

PESA is a simple yet comprehensive and powerful law that empowers villages of the

Scheduled Areas to address the issues that emerge in their daily lives. This Act extends

the Part IX of the Constitution relating to Panchayats to Scheduled Areas. This means

that through the PESA, the system of Panchayats has been extended to the Scheduled

Areas in general however, it would be subject to the exceptions and modifications that

are mentioned in the Act. .

1.2 Applicability of PESA

The PESA is applicable to all the Scheduled Areas of the nine states mentioned in Box

1.2. To give effect to the provisions of Act, the state legislatures were required to form

laws for the scheduled areas of their respective states, in keeping with the Central

PESA. There are two important things to bear in mind here; one that scheduled areas

may be the entire district or blocks within a district and also Panchayats or villages within

blocks. Second, the States are required to amend their respective Panchayat Laws or

Subject matter laws or both to bring it in line with PESA.

1.3 Significance of PESA

The primary objective of decentralised governance is to give the village people the

power to govern themselves. Such

decentralization requires an institutional

structure, as well as an allocation of

powers and responsibilities within this

structure. The PESA therefore recognises

the village community as the basic unit of

governance and prescribes the creation of

Panchayati Raj Institutions at different

levels. At the village level, it prescribes the

recognition of the Gram Sabha or the

Village Assembly. This Gram Sabha elects the Gram Panchayat, which is the body of

elected representatives of the Gram Sabha. At the block level, it mandates the creation

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Fig. 1.1 Distribution of Powers in PESA

Powers to Gram Sabha or PAL (i) consultation before Land Acquisition for

development projects and before resettling or rehabilitating persons affected by such projects

(ii) prior recommendation in granting prospecting license or mining leases for minor minerals as well as for grant of concessions for the exploitation of minor minerals by auction.

Powers to Gram Sabha and PAL (i) enforcing prohibition, regulation or restriction on

the sale or consumption of any intoxicants (ii) ownership of minor forest produce prevention of

alienation of land in Scheduled Areas and taking appropriate action to restore unlawfully alienated land of Scheduled Tribe

(iii) control over institutions and functionaries in all social sectors

(iv) management of village market (v) control over Money Lending (vi) control over local plans and resources for such

plans including tribal sub-plans

The founding principles of self – governance in Scheduled Areas

(i) customary laws, social and religious practices and traditional management practices of community resources play a central role in the lives of the tribals.

(ii) the Gram Sabha is competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources, and customary mode of dispute resolution.

Power exclusive to the PAL

Power for planning and management of Minor Water Bodies

Powers exclusive to the Gram Sabha

(i) the power of approval of the developmental plans, programmes and projects for social and economic development,

(ii) the power of identifying and selecting beneficiaries for poverty alleviation and other programmes and the power for granting of certificate of utilisation of funds or plans programmes and projects that are implemented by the Panchayat.

of the Panchayat Samiti and at the district level, that of the Zilla Parishad. The Gram

Panchayat, the Panchayat Samiti and the Zilla Parishad are collectively called the

Panchayat at Appropriate Level (hereafter PAL).

The PESA, further, empowers the

village community for planning village

development, managing natural

resources and resolving conflict in

accordance with traditional customs and

practices. Such empowerment is

through the Panchayati Raj Institutions

mentioned above.

PESA tries to empower the Panchayati

Raj Institutions through six basic

methods.

I) By recognising the central role of

customary laws, social and religious

practices and traditional management

practices of community resources in the

lives of the tribals and making these the

founding principle of self-governance in

Scheduled Areas. This principle is also

reflected in the definition of village itself.

The act defines a village as consisting

of ‘a habitation (group of habitations),

hamlet (group of hamlets) comprising a

community and managing its affairs in

accordance with traditions and

customs.’ The Gram Sabha has also

been envisaged for such tradition-based

villages and not for the existing villages,

which are revenue villages notified by

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the Governor. Further, the PESA accepts the competence of Gram Sabha in

safeguarding and preserving traditions and customs of the people, their cultural identity,

community resources, and customary mode of dispute resolution. Accordingly, the Act

dictates that all state legislation on Panchayats must be in accordance with the

customary laws, social and religious practices and traditional practices for management

of community resources.

B) By according some powers exclusively to the Gram Sabha. These powers include the

power of approval of the developmental plans, programmes and projects for social and

economic development, the power of identifying and selecting beneficiaries for poverty

alleviation and other programmes and the power for granting of certificate of utilisation of

funds or plans programmes and projects that are implemented by the Gram

Panchayat.

C) By giving the Panchayat at appropriate level the exclusive power for planning and

management of Minor Water Bodies.

D) By empowering the Gram Sabha or the PAL for consultation before Land Acquisition

for development projects and before resettling or rehabilitating persons affected by such

projects, and for prior recommendation in granting prospecting license or mining leases

for minor minerals as well as for grant of concessions for the exploitation of minor

minerals by auction.

E) By empowering the Gram Sabha and the PAL through powers that are perhaps the

most important for the lives of the tribals. These powers make the Gram Sabha a

necessary unit of empowerment along with any other level of Panchayat and include

enforcing prohibition, regulation or restriction on the sale or consumption of any

intoxicants; ownership of minor forest produce; prevention of alienation of land in

Scheduled Areas and taking appropriate action to restore unlawfully alienated land of

Scheduled Tribe; control over institutions and functionaries in all social sectors;

management of village market; control over Money Lending and also control over local

plans and resources for such plans including tribal sub-plans

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F) By necessitating proportional representation and reservations for Scheduled Tribe

members. Proportional representation means that if the scheduled tribe population in a

village is 80% of the total population, then in the Gram Panchayat, 80% of the members

must be from the Scheduled tribes. Moreover, for facilitating local leadership from the

tribal community, the posts of Sarpanch and Up-sarpanch in the Scheduled Areas are

reserved for members of the Scheduled tribes.

Part II: PESA for Us

2.1 Applicability of PESA in Gujarat

The Provisions of PESA were operationalized in Gujarat in 1998 when Gujarat

Panchayats (Amendment) Act, 1998 was enacted. The Act extended the provisions of

Gujarat Panchayats Act, 1993 to Scheduled Areas of the State with certain

modifications. In the State of Gujarat, it is applicable in 5,055 villages, in 33 talukas, in 7

districts. Lets call this law on Tribal self-rule Gujarat PESA.

* Sarpanch, Year-1, No. 3, January-March-1997, Western India Panchayati Raj Forum

Ahemdabad

2.2 We, The People

It is important for us to know that Gujarat PESA assigns a pivotal role to us with regard

to development planning, management of natural resources and dispute resolution.

Apart from our Gram Sabha there are Panchayat Raj Institutions at Village, Block and

District level, which comprises our elected representatives (see fig 2.1). Their powers

and duties are discussed in the later part of this booklet.

Box 2.1 Details of the Scheduled Areas in Gujarat

District Taluka (Block) 1. Sabarkantha Khedbrahma, VijayNagar, Bhiloda, Meghraj 2. Panchmahal Dahod, Jhalod, Santrampur, Limkheda, Devgadhbaria 3. Vadodra Chhota Udaipur, Naswadi, T ilakwada, Jetpur-vapi 4. Bharuch Dediapada, Sagbara, Valia, Nandod, Jhaghdia 5. Surat Songadh, Uchchhal, Vyara, Valod, Nizar, Mandavi, Mahuva, Mongrol, Bardoli 6. Valsad Vansada, Dharampur, Chikali, Paradi, Umargan 7. Dang Ahwa

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Fig. 2.1 Structure of Panchayti Raj Institutions

The Gram Sabha or Village Assembly is the foundation for Panchayati Raj

Zila Panchayat at the District Level

Taluka Panchayat at the Block Level

Gram Panchayat at the Village

Level

All of us who are registered in the

electoral rolls for Panchayat at village

level constitute “Gram Sabha”. There shall

be gram Sabha in every village. A village

according to the Gujarat Panchayats Act,

1993 is a village declared by the Governor

by public notification to be a village and

can include a group of villages too. The

village comprises a local area having a

population of less than 15 thousand. In

scheduled areas, the said local area

ordinarily consists of a habitation (s) or a

hamlet (s), living together as a community and managing their affairs in accordance with

their traditions and customs. It is important that the villages are defined on community

lines and not on the basis of Government revenue records as we have our unique ways

of defining our villages, for instance see the figure 2.2

NOTE: The definition of local area in Gujarat PESA bears semblance to the definition of

village under Central PESA. Though it is this local area, which constitutes a village, the

official declaration of the same has been left to the governor of our State. It is important

for the governor to keep in mind our customary modes of defining villages, while

notifying the villages in Scheduled Areas.

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Our Traditional Village

Our traditions and customs were transmitted from one generation to another, orally. We did not

maintain written documents on these. Yet we are well versed with these traditions and customs,

and now our villages can be defined according to them. (Figure 2.2).

In consonance with the basic principles of the Central PESA, our State has now

recognized by law that the Gram Sabha shall endeavor to take measures to safeguard &

preserve:

Fig. 2.2 Defining our Village

A, B, C, D and E were five tolas in a Scheduled Area, all belonging to the same tribe. Though they were separated by a road, and had different wells and handpumps, forest and grazing lands, these Tolasdecided to form one village. These tolas believe that they have all descended from the same ancestors. They worship the same Devi, they follow the same customs, and they have traditionally lived as one village. They always celebrated their festivals together and have a common Mela. Residents from these tolas participate in the ceremonies associated with birth, marriage, and death in whichever tola. customs, and have traditionally lived as one. Even their disputes are resolved through the same mechanism! Hence, they formed one village. Similarly, we can define our own village, in accordance with our traditions and customs!

A

B

E

D

C

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q Our traditions and customs

q Our cultural identity

q Our community resources

q The Customary mode of dispute resolution.

2.3 Our Powers! But how do we exercise them?

The Gujarat PESA lists the powers in the above-mentioned six different ways

(discussed in section 1.3) to the Gram Sabha and to the Panchayat at the appropriate

level. Some of these powers are to the Gram Sabha alone, some to only the Panchayat

at appropriate level and some to either of the institutions. Note that in Gujarat one of the

five sets of powers mentioned above i.e. those powers that are necessarily given to the

Gram Sabha as well as any other level of Panchayat is absent. Let us now see how the

State of Gujarat has exactly allocated powers to the various tiers of local government.

Table 2.1 Comparative Inter –Tier Allocation of Powers Power Inter-tier Allocation

Central PESA

Gujarat PESA

1. Consultation before Land Acquisition for development projects and before resettling or rehabilitating persons affected by such projects

GS or PAL

Taluka Panchayat

2. Prior recommendation in granting prospecting license or mining leases for minor minerals as well as for grant of concessions for the exploitation of minor minerals by auction.

GS or PAL -----

3. Power for planning and management of Minor Water Bodies PAL only Village Panchayats

4. Enforcing prohibition, regulation or restriction on the sale or consumption of any intoxicants

GS and PAL

Village Panchayats

5. Ownership of minor forest produce GS and PAL

Village Panchayats

6. Prevention of alienation of land in Scheduled Areas and taking appropriate action to restore unlawfully alienated land of Scheduled Tribe

GS and PAL

District Panchayat

7. Control over institutions and functionaries in all social sectors GS and PAL

Village Panchayats

8. Management of village market

GS and PAL -----

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9. Control over Money Lending GS and PAL

Village Panchayats

10. Control over local plans and resources for such plans including tribal sub-

plans

GS and PAL

Taluka Panchayat

11. Approval of the developmental plans, programmes and projects for social and economic development

GS only GS only

12. Identifying and selecting beneficiaries for poverty alleviation and other programmes

GS only GS only

13. Granting of certificate of utilisation of funds or plans programmes and projects that are implemented by the Panchayat. GS only GS only

2.3.1 Powers exclusive to Gram Sabha

The PESA in our state has empowered our Gram Sabha exclusively to execute certain

functions, these are:

1. We can approve or reject any plan, project or programme of the Panchayat for the

social and economic development of our village. (See box 1.5)

BOX- 2.2 Powers Exclusive to Gram Sabha q Approving any plan, project or programme for the development of our village; q Selecting beneficiaries to be benefited under the poverty alleviation and other

programmes; q Issuing a certificate for the money spent by the Panchayats;

Guiding Suggestion No 1

In assessing these programmes, we could consider the following factors We can take into account the

desirability of the project in terms of whether there is a felt need for the outputs envisaged at the time of

project completion. In addition to the desirability, the viability of the project also needs to be determined.

This assessment may be carried out on the basis of the objectives, the time-period for achievement of

these objectives and the costs involved.

q The benefits that result from the project are critical in granting approval. Both, the short - term or

immediate gains and the long-term benefits should be taken into account. For instance, in a drought

year, the construction of road which will provide employment to a large number of people, may seem to

be a highly desirable, and beneficial project. At another time, the construction of a school or a primary

health center, which will have long- term benefits, may be a wise choice.

q In addition to the absolute benefits, we could also take into account the distribution of benefits to the

Gram Sabha so that the village as a whole can develop.

We, as members of the Gram Sabha must grant approval for projects only when we are satisfied on all the above parameters.

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2. We can select the people who should benefit under the poverty alleviation and other

programmes

The power to decide the beneficiaries from the poverty alleviation programmes of the

Government now lies with us, Gram Sabha members and not with the with the teacher

or any Officer authorized by the State. Note that Poverty Alleviation Programmes for

beneficiaries are not restricted to formal Below Poverty Line (BPL) Surveys alone. We

should be very clear about all the factors and reasons that we have on the basis of

which we would identify the beneficiaries. Some of the possible factors are suggested

below)

Guiding Suggestion No 2

We must exercise this power carefully and in selecting the beneficiaries, could keep in

mind:

q The extent of land that is owned by a beneficiary. Clearly the land less must be

given a priority.

q The economic condition of the proposed beneficiary on the basis of his/her

source of income, income of the family members or the individual, total number

of members in the family including the earning members and the dependants.

q The social factors affecting the proposed beneficiaries and the alternative

opportunities available to them should be taken into account. For instance a

widow with no source of income or an orphan child with no relatives may require

more help than a person who is getting insufficient daily wages. q An attempt may be made to ensure that different families benefit from the

different poverty alleviation programmes, and only few families are not at an

advantage. q The extent to which the individual is capable of utilizing the proposed benefit may

also be a deciding factor.

In any case, the parameters should be well in place before the identification of the

beneficiaries so that there is a sense of fairness and justice.

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3. We can issue the Utilization Certificate (UC) to Panchayats for utilization of

monetary resources for the works implemented by the Panchayat.

We must issue this Certificate for the utilization

of the funds to the Village Panchayat only

when we are completely satisfied that the

money allocated for a project is being used

properly. Thus before granting the UC we

should ensure-

• The amount of money which has been spent

on the project;

• Whether such amount is within the amount

sanctioned or exceeds it;

• Whether such amount was used properly;

2.3.2 Powers exclusive to Panchayats at appropriate level

As per the Central PESA the planning and

management of Minor Water Bodies is to be

vested with the Panchayat at Appropriate

level. In our State the Village Panchayats

have been empowered to make provisions

in respect of planning and management

“water bodies”.

It is important to note here that while Central PESA talks about minor water bodies, in

our State all the water bodies come under the ambit of Village Panchayats management.

2.3.3 Powers of Gram Sabha OR Panchayat at appropriate level.

Certain powers have been left to the State’s discretion to be devolved either to Gram

Sabha or Panchayat at appropriate level. It is important for us to see how has our State

exercised this discretion.

Box-2.3 Powers exclusive to Panchayats at appropriate level

Central Act: Planning and managing MINOR WATER BODIES Gujarat PESA Planning and management of WATER BODIES

Guiding Suggestion No 3 Additionally, we can also consider the following factors for the granting of the Utilization Certificate: § Whether necessary and sufficient

material or labor was used or it exceeded the reasonable standards.

§ Whether the project has been completed within the time-period and if not, then the reasons;

§ The benefits for which such expenditure has been incurred;

Only on being satisfied that the funds have not being misused, should we grant the Certificate to the Panchayat.

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Our State PESA does not incorporate any provision regarding grant of prospecting

license or mining leases for minor minerals as well as for grant of concessions for the

exploitation of minor minerals by auction.

As regards consultative powers regarding land acquisition for developmental projects,

the same has been given to Taluka Panchayat.

Taluka Panchayat has to be compulsorily consulted before:

i. The acquisition of any land situated in the taluka for a development project;

ii. The rehabilitation of people evicted by such project.

2.3.4 Powers of Gram Sabha AND Panchayat at appropriate level:

Our State PESA totally violating the spirit of Central PESA gives these powers to different

tiers of Panchayat Raj Institutions, totally excluding our Gram Sabha from exercising such

powers. The Central Legislation sought to empower the gram Sabha by giving it a pivotal

role in the management of natural resources, social and economic development of our

villages and protecting tribals from exploitative money lending and market practices.

Restricting our Gram Sabha from exercising these powers is a violation of the

constitutional mandate.

Despite the fact that these powers have been wrongly assigned to Panchayat at

appropriate level alone while excluding the Gram Sabha, it is important, at this time to

know how can the appropriate levels of the Panchayats exercise their respective

powers.

1. Intoxicants:

Guiding Suggestion No 4

If the Government wants to undertake any developmental activity in our village, it must

put forward a proposal to the Taluka Panchayat. The said proposal must explain the

objectives, need and the benefits amongst other details of the project. If such a project

involves displacement of people then the proposal should incorporate the

rehabilitation plan. Thereafter, if the Gram Sabha Taluka Panchayat is satisfied that

such a project is required, then it may give its consent and recommendations in

writing.

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The power to enforce prohibition, restriction and regulation on the sale and consumption

of intoxicants has been vested with the Village Panchayat

Guiding Suggestion No 5 The power to enforce prohibition, restriction and regulation on the sale and consumption of

intoxicants may include the forming of rules regarding;

a. Issuance and cancellation of permits and licenses for the sale of intoxicants and the conditions on

which the license is to be granted. These conditions may involve restrictions like prohibition on

child labor, volume of alcohol.

b. The categories of intoxicants, which can be sold.

c. The persons to whom such intoxicants cannot be sold, for instance, persons less than 21 years of

age or persons of unsound mind.

2. Minor Forest Produce

As per our State Act Minor Forest Produce found in the area of the village vests in the

Village Panchayat. However the National Parks and Sanctuaries have been kept away

from the ambit of this provision. Such distinction between minor forest produce from

different forestlands have not been made in the Central PESA. Is our Government is

justified in narrowing down the scope of this section like this?

Further the Act says that the sale proceeds of the minor forest produce shall go into and

form part of the Village Fund. It is our duty to ensure that this is done in our villages.

3. Exercising control over institutions and functionaries in the social sector:

The village Panchayat has been empowered to exercise control over institutions and

functionaries in all social sectors.

.

4. Taluka Panchayat shall exercise control over local plans and resources for

such plans including tribal sub-plans. Guiding Suggestion No 7

For the purpose of knowing who controls the local plans we need to understand two things clearly: first the role of Tribal Developmental Agencies in

Guiding Suggestion No 6 This power has been given to ensure that there is neither any

misuse of power nor any malfunctioning affecting the welfare of the tribals. We must find out which are those institutions as well as functionaries in the social sector. We must insist that our state provides an exact list of such institutions and functionaries to

village Panchayat

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It is important for us to note that all local

plans including plans for our village is now

to be under overall control of the elected

Taluka Panchayats and not the officers of

the Government at the Block level.

5. Money Lending

If a moneylender wants to lend money to a Scheduled Tribe residing in the Scheduled

Areas of our State, he has to take prior permission of the village Panchayat. This means

that the village Panchayat will have a control over the rates at which loans are advanced

to the Scheduled Tribes, and other terms and conditions of the loan. This provision has

been inserted in the Bombay Money-Lenders Act, 1946 following the coming of our State

PESA.

6. Land Alienation

Without the previous sanction of the District Panchayat no occupancy of a Tribal can be

transferred to any person. It is important for us to know that earlier this power was

exercised by the Collector, but now it has been transferred to the elected District

Panchayat and the Collector does not have this power any longer.

What if such a transfer has been made without District Panchayat’s sanction???

If such a transfer has been made without District Panchayat’s sanction then the

aggrieved tribal or his successor can take the following course of action:

Fig 2.3

2.3.5 Reservation of seats of the office bearers for Scheduled Tribes:

Application to District Panchayat (Within 2 years of transfer]

District Panchayat to hold an Inquiry

If it decides in favor of Tribal, the occupancy is restored to him.

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2.3.5 Reservation of seats for people belonging to Scheduled Tribes:

To ensure that the Scheduled Tribes get representation in the Panchayats at the village,

taluka and district level, our State PESA provides that the seats of the office bearers in

the Village, Taluka and the District Panchayats in Scheduled Areas shall be reserved for

the Scheduled Tribes, such reservation shall not be less than half of the total number

seats in such Panchayats. Apart from this the seats of the Sarpanchs in village

Panchayats, Presidents in Taluka and District Panchayats shall be reserved for the

Scheduled Tribes.

2.4 How to make PESA work for us: Some Suggestions

2.4.1 Making PESA work for us

As we have seen from the above that our State of Gujarat Pradesh has been reluctant in

transferring the powers that has been originally mandated by the Central PESA.

However, we are the village community and it is our responsibility to make PESA work

for us. After knowing our rights, powers and duties, we must come forward collectively to

enforce them. It is our duty to protect our Rights; to ensure the responsiveness of the

Village Panchayat, the Taluka Panchayat and the District Panchayat, to our needs. In

addition, we must put pressure on those who make laws and policies to devolve effective

powers upon our community.

2.4.2 Using the Right to Information

The Right to Information is our Fundamental Right granted by the Constitution. We can

demand all the information relevant to our village. To know about the relevant changes

in the laws affecting us, as well as the developmental schemes made for us, we must

interact with the Sarpanch on a regular basis and make periodic visits to the offices of

the Panchayati Raj Department at the Block, District and the State level. These laws

may be in the form of Rules, Government orders and Executive Instructions. To increase

our knowledge about the rights available with us we should also interact with local voluntary

agencies and the relevant line departments. The Gram Sabha meetings may also serve

as a forum for sharing such information as is of interest to the village.

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Part III: Legal Interpretation Aids

To appreciate the spirit of PESA it is important to develop an understanding of the

meaning of key terms used in law. This section not only presents a glossary of terms

highlighted in the text but also the fine distinction between them.

As may be prescribed The particular subject matter has not been explained in

detail and that it would be set down extensively in future

by the state.

Certificate for utilization of

funds

Utilization certificate which may be given by Gram

Sabha to the Panchayat as a means of auditing the

expenses incurred by the Panchayat

Control To exercise restraining or directing influence over the

something

Consultation Deliberation of persons on some subject without a

binding effect

Custom A rule of conduct which in a given place and among

given groups of persons has been followed for a

considerable time.

Customary practice Habitual practice or course of action, that prevails within

a geographical or sociological area and is

characteristically repeated in like circumstances

Customary Law Law originating from the age-old customs and is

recognized as such by the people and the judiciary.

Customary Modes of

Dispute Resolution

Resolving disputes between people belonging to a

particular community or village by the traditional leaders

or heads of such community or village as per their

traditions and customs.

Government Orders Orders issued by the State and the Central Government

Gram Sabha It consists of all those persons who are registered in the

electoral rolls for Panchayat at village level.

Gram Sabha only Powers conferred to Gram Sabha or the Village

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assembly exclusively like safeguarding and preserving

people’s customs, granting utilization certificate to

Panchayats etc.

Gram Sabha or

Panchayat at the

appropriate level

Powers, which are to be exercised either by the Gram

sabha or the Panchayat

Intoxicants Anything that ordinarily produces complete or partial

intoxication. The term Includes Indian liquor, afeem,

ganja, charas, bhang, gud, mahua, tadi, salfi etc.

Land Acquisition Procuring or acquiring ownership of land in the

scheduled areas for development projects Government.

Land Alienation Transfer of property or possession of lands from a

Scheduled tribe to any other person

Local Area Local area ordinarily consists of a habitation or a group

of habitations or a hamlet or a group of hamlets thereof

comprising a community and managing their affairs in

accordance with their traditions and customs

Management To look after the day-to-day working and handling of the

property

Minor Minerals The Gujarat PESA neither defines it nor contain any

provision regarding the same, but it may include building

stones, gravel, ordinary clay, ordinary sand etc. The list

of minor minerals varies from state to state

Minor Forest Produce This is defined Gujarat PESA to include timru leaves,

mhowra flowers, fruits, seeds and doli or any other class

of forest produce which the State Government may

declare to be a Minor forest Produce by notifying in the

official gazette

Minor Water Bodies This is not defined in the Central or but may include

small structures, small tanks, and wells etc. used for

day-to-day purposes for drinking, cattle and agriculture

Money Lender The term has been defined in Bombay Money Lenders

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Act, 1946. Money Lender means a person who carries

on the business of advancing loans in our State. It

includes an individual, an undivided Hindu Family, a

company or an unincorporated body of individuals.

Ownership The exclusive right of possession, enjoyment, and

disposal, involving as an essential attribute the right to

control, handle and dispose

Panchayat at Appropriate

level

The Three tiers of the Panchayati Raj Institutions

including Village Panchayat at the Village level, Taluka

Panchayat at the Block level and the District Panchayat

the District level.

Panchayat at appropriate

level only

Powers conferred exclusively to any of the three tiers of

Panchayat Raj Institutions (local self government units)

like management of water bodies.

Poverty Alleviation

Programmes

Programmes undertaken by the Government to alleviate poverty for instance introducing schemes like Jawahar Rozgar Yojna.

Recommendation A favorable statement about something given as an

advice not having any binding effect

Social & Economic

Development Project

Projects undertaken for economic upliftment and social

welfare of the people at village level. For example,

establishment of a hospital or a school in the village.

Rules Rules mentioned in this booklet refer to Rules which

have been made in pursuance of legislation or an Act.

Social Beneficiaries Village people who are benefited under any

development programme aimed at their social &

economic welfare.

Social Functionaries State officials working in the social sector, who have

been conferred certain duties and powers in respect of

development and welfare of the village. For example

officials working in the government hospitals, schools,

banks and other government departments

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Subject to laws in force The law in question should be in consonance with other

laws prevailing in the country

Village A village declared by the Governor by public notification

to be a village and can include a group of villages too.

Village Market Small markets in local Villages. (Local haats)

.

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Annexure

Annexure No. 1

The Panchayat (Extension To Scheduled Areas) Act, 1996 (Act 40 of 1996)

(24th December, 1996)

An Act to provide/or the extension of the provisions of Part IX of the Constitution relating

to the Panchayats to the Scheduled Areas.

Be it enacted by Parliament in the Forty-Seventh Year of the Republic of India as

follows: -

1. This Act may be called the Provisions of the Panchayats (Extension to the Scheduled

Areas) Act, 1996.

2. In this Act, unless the context otherwise requires, "Scheduled Areas" means the

Scheduled Areas as referred to in clause (1) of article 244 of the Constitution

3. The provisions of Part IX of the Constitution relating to Panchayats are hereby

extended to the Scheduled Areas subject to such exceptions and modifications as are

provided in section 4.

4. Notwithstanding anything contained under Part IX of the Constitution, the Legislature

of a State shall not make any law under that Part which is inconsistent with any of the

following features, namely: -

(a) a State legislation on the Panchayats that may be made shall be in consonance with

the customary law, social and religious practices and traditional management practices

of community resources ;

(b) a village shall ordinarily consist of a habitation or a group of habitations or a hamlet

or a group of hamlets comprising a community and managing its affair in accordance

with traditions and customs;

(c) every village shall have a Gram Sabha consisting of persons whose names are

included in the electoral rolls for the Panchayat at the village level;

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(d) every Gram Sabha shall be competent to safeguard and preserve the traditions and

customs of the people, their cultural identity, community resources and the customary

mode of dispute resolution:

(e) every Gram Sabha shall —

(i) approve the plans, programmes and projects for social and economic development

before such plans, programmes and projects are taken up for implementation by the

Panchayat at the village level;

(ii) be responsible for the identification or selection of persons as beneficiaries under the

poverty alleviation and other programmes;

(f) even Panchayat at the village level shall be required to obtain from the Gram Sabha a

certification of utilization of funds by that Panchayat for the plans, programmes and

projects referred to in, clause (e);

(g) the reservation of seats in the Scheduled Areas at every Panchayat shall be in

proportion to the population of the communities in the Panchayat for whom reservation is

sought to be given under Part IX of the Constitution :

Provided that the reservation for the Scheduled Tribes shall not be less than one-half of

the total number of seats:

Provided further that all seats of Chairpersons of Panchayats at all levels shall be

reserved for the Scheduled Tribes;

(h) the State Government may nominate persons belonging to such Scheduled Tribes as

have no representation in the Panchayat at the intermediate level or the Panchayat at

the district level:

Provided that such nomination shall not exceed one-tenth of the total members to be

elected in that Panchayat;

(i) the Gram Sabha or the Panchayats at the appropriate level shall be consulted before

making the acquisition of land in the Scheduled Areas for development projects and

before re-settling or rehabilitating persons affected by such projects in the Scheduled

Areas; the actual planning and implementation of the projects in the Scheduled Areas

shall be coordinated at the State level;

(j) planning and management of minor water bodies in the Scheduled Areas shall be

entrusted to Panchayats at the appropriate level;

(k) the recommendations of the Gram Sabha or the Panchayats at the appropriate level

shall be made mandatory prior to grant of prospective license or mining lease for minor

minerals in the Scheduled Areas;

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(1) the prior recommendation of the Gram Sabha or the Panchayats at the appropriate

level shall be made mandatory for grant of concession for the exploitation of minor

minerals by auction;

(m) while endowing Panchayats in the Scheduled Areas with such powers and authority

as may be necessary to enable them to function as institutions of self-government, a

State Legislature shall ensure that the Panchayats at the appropriate level and the Gram

Sabha are endowed specifically with—

(i) the power to enforce prohibition or to regulate or restrict the sale and consumption of

any intoxicant;

(ii) the ownership of minor forest produce;

(iii) the power to prevent alienation of land in the Scheduled Areas and to take

appropriate action to restore any unlawfully alienated land of a Scheduled Tribe;

(iv) the power to manage village markets by whatever name called;

(v) the power to exercise control over money lending to the Scheduled Tribes;

(vi) the power to exercise control over institutions and functionaries in all social sectors;

(vii) the power to control over local plans and resources for such plans including tribal

sub-plans;

(n) the State legislations that may endow Panchayats with powers and authority as may

be necessary to enable them to function as institutions of self-government shall contain

safeguards to ensure that Panchayats at the higher level do not assume the powers and

authority of any Panchayat at the lower level or the Gram Sabha;

(o) the State Legislature shall endeavor to follow the pattern of the Sixth Schedule to the

Constitution while designing the administrative arrangements in the Panchayats at

district level in the Scheduled Areas.

5. Notwithstanding anything in Part IX of the Constitution with exceptions and

modifications made by this Act, any provision of any law relating to Panchayats in force

in the Scheduled Areas immediately before the date on which this Act receives the

assent of the President, which is inconsistent with the provisions of Part IX with such

exceptions and modifications shall continue to be in force until amended or repealed by

a competent Legislature or other competent authority or until the expiration of one year

from the date on which this Act receives the assent of the President:

Provided that all the Panchayats existing immediately before such date shall continue till

the expiration of their duration unless sooner dissolved by a resolution passed to that

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effect by the Legislative Assembly of that State or, in the case of a State having

Legislative Council by each House of the Legislature of that State

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Annexure No. 2

Gujarat Panchayats Amendment Act, 1998 (Act No. 5 of 1998)

An Act to further amend the Gujarat Panchayats Act, 1993 It is hereby enacted in the Forty-ninth Year of the republic of India as follows: - 1. (1) This Act may be called the Gujarat Panchayats (Amendment) Act, 1998 2. In the Gujarat Panchayats Act, 1993 (hereinafter referred to as the “the principal

Act”) after section 278, the following sections shall be inserted namely: - 278A This Act shall apply to the Scheduled Areas of the State as referred to in clause (1)

of article 244 of the Constitution of India, subject to the modifications specified in

Schedule IV.

278AA The enactments specified in Schedule V shall in their application to the

Scheduled Areas of the State as referred to in clause (1) of article 244 of the

Constitution of India, be amended to the extent specified in column 3 0f the said

schedule.”

3. In the principal Act, after Schedule II, the following Schedules shall be added,

namely: -

SCHEDULE IV

(See section 278 A)

(Modifications subject to which this Act applies to the Scheduled Areas of the State)

2. For section 2, the following section shall be substituted, namely: -

4. (1) There shall be Gram Sabha for a village for performing such functions as

are provided by or under this Act.

(2) The Gram Sabha shall consist of persons whose names are included in the

list of voters of electoral divisions of that village.

(3) The gram Sabha shall perform the following additional functions:

(a) The Gram Sabha shall endeavor to safeguard and preserve the

traditions and customs of the inhabitants of the village people, their

cultural identity, community resources and the customary mode of dispute

resolution.

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(b) The gram Sabha shall

(i) approve the plans, programmes and projects for social and economic development

before such plans, programmes and projects are taken up for implementation by the

Village Panchayat.

(ii) be responsible for the identification or selection of persons as beneficiaries under

the poverty alleviation and other programmes in the village”.

3. In section 7, to sub-section (1) the following proviso shall be added,

namely: -

“Provided that while making a recommendation in respect of a local area in the

schedules area, it shall be ensured that the local area shall ordinarily consist of a

habitation or a group of a habitation or a group of habitations or hamlet or a group of

hamlets comprising a community and managing its affairs in accordance with the

traditions and customs.”

11. In section 108 after sub-section (4), the following sub-section shall be

added, namely: -

“ (5) (a) For the purposes of this Act, There shall be vested in the Village Panchayat

minor forest produce found (except found in the areas of National Parks or Sanctuaries)

in such area of a forest as is situate in the jurisdiction of that village”

(b) the proceeds of the minor forest produce shall be paid into and form part of the

village fund

(c) Nothing in clause (a) shall be construed as vesting in the village Panchayat the land

in the area of forest referred to in clause (a) trees and plantations thereon.

Explanation: For the purposes of this sub-section the expression “minor forest produce”

shall have the same meaning as assigned to it in clause (9) of section 2 of the Gujarat

Minor Forest Trade Nationalisation Act, 1979.

12. In section 112, after sub-section (1) the following sub-section shall be

inserted, namely: -

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“ (IA) The Village Panchayat shall obtain from the Gram Sabha a certification of

utilization of funds by that Panchayat for the plans, programmes and projects taken

referred to in sub-section (3) of section 4.”

13. After section 132, the following section shall be added, namely: -

“132 A The Taluka Panchayat shall be consulted –(a) before acquiring under the Land

Acquisition Act, 1894 any land situate in the taluka for any development project; (b)

before resettling or rehabilitating persons affected by such project.

14. In Schedule I-

(1) in entry 1 after sub-entry (i), the following sub-entry shall be inserted, namely: -

(ia) Enforcing prohibition and regulating or restricting the sale and consumption

of intoxicants” is vested with the village Panchayat.

(2) in entry 7, after sub-entry (k), the following sub-entry shall be inserted, namely:

(k-i) Planning and management of minor water bodies shall be vested with the

village Panchayat.

(3) after entry10, the following entry shall be added, namely:-

11. the power to exercise control over institution and functionaries in all social

sectors” is vested with the village Panchayat.

15. In Schedule II, in part I, in entry 5, after sub-entry (d), the following sub-

entry shall be added, namely: -

(e) Control over local plans and resources for such plans including tribal sub-plans” is

vested with taluka Panchayat

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